Rodgers v. State Pers. Bd., E075803
| Docket Number | E075803 |
| Decision Date | 09 September 2022 |
| Citation | 83 Cal.App.5th 1,299 Cal.Rptr.3d 257 |
| Parties | Steven RODGERS, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent; Department of Corrections and Rehabilitation, Real Party in Interest and Respondent. |
| Court | California Court of Appeals Court of Appeals |
Castillo Harper, Brandi L. Harper, Riverside, and Michael A. Morguess, for Plaintiff and Appellant.
No appearance for Defendant and Respondent, State Personnel Board.
Department of Corrections and Rehabilitation and Leslie Wagley for Respondent and Real Party in Interest.
Steven Rodgers is a correctional sergeant employed by the Department of Corrections and Rehabilitation (CDCR). He appeals the denial of his writ petition seeking to set aside the State Personnel Board's (SPB) decision to reduce his salary by 10 percent for two years as a penalty for an incident that occurred in July 2017 while he was supervising a contraband surveillance watch shift at Pelican Bay State Prison.
Rodgers argues the factual findings the SPB adopted after his administrative hearing are (i) not supported by substantial evidence and (ii) significantly different from those alleged in the notice of adverse action (NOAA), and as a result, SPB's decision violated his due process right to notice of the charges against him. We agree with his second contention and therefore reverse.
Contraband surveillance watch is a procedure for monitoring inmates suspected of hiding drugs or weapons inside their body. The inmate is physically restrained and placed in an isolated cell under constant, one-on-one observation until they excrete the contraband (or until 72 hours have elapsed, at which point special approval is needed to extend the procedure). The physical restraints are designed to prevent the inmate from accessing and re-ingesting the contraband before staff has a chance to retrieve it. They consist of leg irons
and handcuffs that connect to a waistband, and a "hand isolation device" resembling a mitten that attaches to the handcuffs. The leg irons and handcuffs are equipped with a double-locking mechanism that keeps the restraint secure and prevents it from becoming too tight and cutting off the inmate's circulation when manipulated.
Each watch is divided into shifts and every shift is supervised by a sergeant. There is one officer assigned to each inmate under surveillance. Every 15 minutes, the officer must perform a wellness check of their inmate and record their observations on their watch form. The officer must also periodically check the temperature of the cell.
At least twice during each shift, the supervising sergeant must help the officer conduct a restraint check, which is a physical inspection of the inmate's restraints to ensure they are both secure and comfortable. Pelican Bay's contraband surveillance watch policy states the restraint checks must occur "at a minimum twice per shift" and "preferably at the beginning and then again at the end of the shift." Every restraint check must be documented on the watch form and signed by the supervising sergeant.
Rodgers has worked for CDCR since November 2008 and has served as a correctional sergeant since 2014. In early May 2018, CDCR served him with an NOAA stating they were reducing his salary by 10 percent for two years, effective the end of that month. CDCR alleged that while supervising a contraband surveillance watch shift Rodgers refused to perform a restraint check at the beginning of the shift and directed his officers to falsify the watch form to say they had performed the check. CDCR also alleged that when Rodgers found out the officers had reported his misconduct to another sergeant, he angrily confronted them and used profanity in asking them who had ratted him out.
CDCR alleged the following factual basis to support their proposed penalty. On the evening of July 22, 2017, correctional officers Angulo and Palafox reported to the "C facility" of Pelican Bay's Security Housing Unit (SHU) for their contraband surveillance watch shift, which started at 10:00 p.m. and ended at 6:00 a.m. the following day. The officers began reviewing their documentation packets for their shift, which included the watch form for their inmate and a copy of CDCR's contraband surveillance watch procedures.
Shortly after the shift began, they asked Rodgers to conduct the restraint check and he told them he was "too busy." At about 10:30 p.m., Palafox found Rodgers in the C Facility Program Office, and asked him to do the restraint check. Rodgers told Palafox to "pencil whip" (a military term that means forge or falsify) the form to say they completed the inspection, and if anything happened, he'd "take the hit."
When Palafox told Angulo what had happened, they became uncomfortable with the idea of not doing the inspection and falsifying the form. Angulo contacted Sergeant Moore, who was on duty in a different area, for advice. Moore told him inspections were mandatory and one must be done at the beginning of the shift. Moore then contacted Rodgers's supervisor, Lieutenant Vanderhoofven, and informed him that Rodgers was "refusing to perform the inmate restraint checks at the beginning of the shift as required."
At about 11:15 p.m., Angulo found Rodgers in his office and asked him to conduct the restraint check, at which point Rodgers became irritated with the officers for repeatedly asking about the inspection. It wasn't until around midnight (two hours into the shift), Rodgers returned to the watch area and finally conducted the restraint check, during which they discovered one of the inmate's leg cuffs was not double-locked.
A couple hours after that, around 2:00 a.m., Vanderhoofven visited C Facility to discuss proper procedure with Rodgers. He told Rodgers that another sergeant had informed him of his refusal to inspect the restraints at the beginning of the shift. After Vanderhoofven left, Rodgers returned to the watch area and angrily asked the officers, "Which one of you mother fuckers spoke to another sergeant about this?" When Angulo responded that it had been him, Rodgers complained that he had received training as a result.
Due to the difficulties the officers had in getting Rodgers to inspect the restraints, when they saw Sergeant Reynoso arriving to take over as supervising sergeant for the next shift at 5:30 a.m., they asked him to do the inspection with them. When Rodgers arrived about 10 minutes later to do the final inspection and saw the officers had gotten another sergeant to do it, he became upset again and said, "What the hell, you trying to have another sergeant do my job?"
CDCR alleged Rodgers's conduct violated Government Code section 19572, subdivisions (d) (); (m) (discourteous treatment); (o) (willful disobedience); and (t) (behavior either during or outside duty hours of such a nature to cause discredit to his employer). (Unlabeled statutory citations refer to this code.) Specifically, CDCR alleged that Rodgers had: (i) neglected his duties by "refusing to perform" the inspection at the beginning of shift; (ii) treated his subordinates in a "discourteous and disrespectful" manner when he angrily, and with profane language, "confronted and intimidated" them about reporting his neglect of duty to another sergeant; and (iii) "misused [his] authority" when he directed the officers to "pencil whip" their inspection documentation, thereby "instructing them to fill in inaccurate information regarding the restraint inspections on official records."
Rodgers appealed his discipline to the SPB, and his administrative hearing took place before Administrative Law Judge (ALJ) John Johnson in November 2018. After hearing testimony from Rodgers, Palafox, Angulo, Moore, Reynoso, and Vanderhoofven, the ALJ issued a 25-page ruling with detailed credibility determinations and findings of facts.
The ALJ concluded CDCR had failed to prove that Rodgers had refused to perform the restraint check on time and directed his officers to falsify their watch forms. Instead, the ALJ found the following facts true.
On the evening of July 22, 2017, Rodgers met with Palafox and Angulo at the start of the shift. He briefly went over the contraband surveillance watch procedures with them, "reminding them to document everything and to use the proper terminology." Though he didn't perform the restraint check at that time, he told "Palafox and Angulo that he would return later to perform it."
About 15 minutes later (at approximately 10:15 p.m.), Palafox left his post to find Rodgers and ask him to perform the restraint check. Palafox found Rodgers at the corridor control booth where Rodgers was having the corridor control officer sign his time sheet. Rodgers told Palafox he was in the middle of completing other duties and would come back later to do the restraint check. He told Palafox to "pencil in" his portion of the watch form and "I'll come back later and, you know, we'll figure it out." Palafox responded, "Oh, okay," then he and Rodgers went to the watch area where Rodgers performed a quick visual wellness check on the inmates and signed the watch form noting he'd done so.
After Rodgers left, Palafox and Angulo began discussing the restraint check. Palafox considered the first 30 minutes to be the beginning of the shift; Angulo, the first hour. They were both aware that the prison closely scrutinized the watch forms as a result of inmate lawsuits alleging the conditions of contraband surveillance watch were inhumane, and they were worried Rodgers wasn't going to come back to do the inspection in a timely manner.
At approximately 10:25 p.m., Angulo called Moore and implied that Rodgers was refusing to do the restraint check. Moore told Angulo the inspections were mandatory and said she would "take care of it." She then called Rodgers's supervisor, Vanderhoofven, and told him Rodgers was...
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